Decision

Acceptance Decision

Updated 17 March 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1209/2021

17 March 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

NEU & NASUWT

and

Yateley Manor School Limited

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 23 February 2021 that they should be recognised for collective bargaining purposes by Yateley Manor School Limited (the Employer) for a bargaining unit described as: “Teachers and Newly Qualified Teachers (excluding the Headteacher) employed by Yateley Manor School Limited”. The location of the bargaining unit was given as Yateley Manor, 51, Reading Road, Yateley, Hampshire GU46 7UQ The application was received by the CAC on 23 February 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC on 2 March 2021 which was copied to the Unions.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr Martin Kirke and Mr Paul Noon. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 9 March 2021. The acceptance period was extended to 19 March 2021 to allow time for the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. Summary of the Unions’ application

5) In their application to the CAC the Unions stated that they had sent a request for recognition to the Employer on 8 February 2021. The Unions said that the Employer had responded on 16 February 2021 stating “After careful consideration, the request for voluntary recognition is rejected. The Board of Governors are not willing to enter into negotiations in this regard”. A copy of the request and the Employer’s response was attached to the Unions’ application.

6) When asked to provide evidence that the Unions concerned would co-operate with each other and enter into single table bargaining arrangements the Unions stated that officials from each union had already been in close communication to discuss the application. The Unions said that members and representatives from both unions had also held joint meetings over the course of January and February attended by officials from both unions.

7) When asked whether the Unions had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Unions answered ‘No’. The Unions stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

8) The Unions stated that the total number of workers employed by the Employer was 64, of whom 38 were in the proposed bargaining unit. The Unions said that 33 workers in the proposed bargaining unit were members of the Unions. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions stated that the majority of employees in the bargaining unit were members of the Unions. The Unions said that they had a petition in support of recognition signed by a majority of all employees within the bargaining unit and also a majority of members within the bargaining unit. The Unions stated that a copy of the evidence could be provided on request to the CAC for verification.

9) The Unions stated that the reason for selecting the proposed bargaining unit was because the majority of members of the Unions employed by the Employer were employed as teachers. The Unions said that teachers employed by the Employer had, as a group, expressed a desire to secure collective bargaining. The Unions said that teachers were a distinct body of employees at the school who were employed under ‘teacher contracts’. They were required to undertake specific duties (planning and delivering lessons and assessing students) and were paid on a separate teacher pay scale/range and are/were exclusively members of the Teachers’ Pension Scheme. The Unions stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Unions answered “No”.

10) The Unions confirmed that they held a current certificate of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 23 February 2021.

4. Summary of the Employer’s response to the Unions’ application

11) In its response to the Unions’ application the Employer stated that it had received the Unions’ request for recognition on 8 February 2021. When asked for its response, the Employer referred to its letter dated 16 February 2021 (see paragraph 5 above).

12) The Employer confirmed that it had received a copy of the application form from the Unions on 23 February 2021. The Employer stated that it had not, before receiving a copy of the application form from the Unions, agreed the bargaining unit with the Unions and that it did not agree the proposed bargaining unit. The Employer said that in the interests of fair and efficient working practices teaching staff who sat on the School’s Senior Management Team should not be included in any bargaining unit. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that it agreed with the number of workers in the bargaining unit as defined in the Unions’ application. When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered “No”.

14) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer stated that it did not disagree but had no evidence to support this estimation of union membership. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated that at the present time it did not have any information as to whether the majority of workers in the proposed bargaining unit supported recognition.

15) When asked if it wished to put forward a case that the Unions would not co-operate with each other, the Employer said that at the present time it did not have any information to assist it in assessing this. The Employer said that it was concerned as a small employer to ensure efficient and fair practices.

16) The Employer answered that it was not aware of any previous applications when asked if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

17) To assist in the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the unions as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of membership of the Unions within the proposed bargaining unit and of a petition compiled by the Unions. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Unions would supply to the Case Manager a list of their paid up members within that proposed bargaining unit including their full names and date of birth and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 3 March 2021 from the Case Manager to both parties.

18) The information from the Unions was received by the CAC on 4 and 5 March 2021 and from the Employer on 5 March 2021. In the event the check was confined to a check of the level of union membership. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 39 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 34 names. According to the Case Manager’s report the number of members of the Unions in the proposed bargaining unit was 33, a membership level of 84.62%.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 9 March 2021 and the parties were invited to comment on the results by 11 March 2021.

6. Summary of the parties comments on the membership check

21) In an email to the Case Manager dated 11 March 2021 the Unions said that the report of the check clearly demonstrated that the application met the tests set out in paragraph 36 of the Schedule.

22) In a letter to the Case Manager dated 11 March 2021 the Employer said that it accepted that at least 10% of the bargaining unit were members of the Unions. In relation to paragraph 36(1)(b), the Employer said that it believed that a ballot should be held in the interests of good industrial relations and on the basis that there was evidence from a significant number of union members that they were not in favour of the Unions conducting collective bargaining on behalf of the bargaining unit. The Employer said that it was aware of concerns from staff that there was pressure being placed on teachers to support the union activities within the School which suggested that the Unions may not have a clear, fair mandate from staff. The Employer said that it was becoming increasingly concerned about some of the behaviour that had been reported, including intimidation and confrontation from some members, and was considering whether it was appropriate to report to the Unions. The Employer said that in order to ensure that staff felt that they were able to note their support for collective bargaining, or lack of such support, with the least possible interference from other members, the Employer was of the view that the CAC should arrange a ballot of members under paragraph 22(3) of the Schedule.

7. Considerations

23) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

24) The Panel is satisfied that the Unions made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that their application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

25) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the unions constitute at least 10% of the workers in the proposed bargaining unit.

26) The membership check conducted by the Case Manager (described in paragraphs 17-19 above) showed that 84.62% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 18 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

27) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the unions as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in paragraph 26 above the level of membership of the Unions is 84.62%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. The Panel notes the Employer’s allegations in its letter of 11 March 2021 that pressure was being placed on teachers to support union activities within the School and that intimidation and confrontation from some members of the Unions had taken place. The Employer did not provide any evidence to support these allegations which were, in any event, being made in support of a ballot rather than in relation to the test laid down in paragraph 36(1)(b) of the Schedule. The Panel has concluded that it does not have evidence to indicate that the level of membership of the Unions in this case is not a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition.

28) On the basis of the evidence before it the Panel is satisfied, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Concluding observation

29) The Panel notes the Employer’s submission that a ballot should be held in this case. This submission is not relevant at this stage of the application. Should it be relevant at a later stage the Employer will be invited to make submissions that one or more of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

11. Decision

30) For the reasons given in paragraphs 24-28 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Martin Kirke

Mr Paul Noon

17 March 2021